General Legal Issues

    Four commenters commented that the proposed rule encroached on 
adult citizens' constitutional right to view pornography under the 
guise of protecting children from exploitation. The Department 
disagrees with this comment. The final rule does not impinge upon the 
constitutionally protected right to free speech. This claim was fully 
litigated following enactment of the statute and the publication of the 
first version of the section 2257 regulations. The D.C. Circuit, while 
invalidating certain

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provisions of the regulations, held in American Library Ass'n v. Reno, 
33 F.3d 78 (D.C. Cir.1994), that the statute and its implementing 
regulations were content-neutral measures that served the compelling 
state interest in protecting children and were therefore 
``constitutional as they apply to the vast majority of the materials 
affected by them, namely, the commercially produced books, magazines, 
films, and videotapes that cater to ``adult'' tastes.'' Id. at 94.
    Citing the Tenth Circuit's holding in Sundance Assoc., Inc. v. 
Reno, 139 F.3d 804 (10th Cir.1998), several commenters commented that 
the rule's application to secondary producers exceeds the Department's 
statutory authority. Furthermore, the commenters claimed that 
application of the rule to secondary producers as defined by the rule 
would have an unconstitutionally burdensome and chilling effect, and 
four commenters noted that small businesses would be particularly 
burdened with regard to maintaining segregated records, copies of 
depictions, and cross-indexed records. In Sundance, the court held that 
the statutory definition of producer did not distinguish between 
primary and secondary producers and entirely exempted from the record-
keeping requirements those who merely distribute or those whose 
activity ``does not involve hiring, contracting for, managing, or 
otherwise arranging for the participation of the performers depicted.'' 
18 U.S.C. 2257(h)(3). In contrast, the D.C. Circuit in American Library 
Ass'n v. Reno implicitly accepted that the distinction between primary 
and secondary producers was valid. The D.C. Circuit there held that the 
requirement that secondary producers maintain records was not a 
constitutionally impermissible burden on protected speech, particularly 
since secondary producers can comply by maintaining copies of the 
records of the primary producers, an option permitted by this rule. In 
so holding, the court implicitly considered the distinction between 
primary and secondary producers to be legitimate. Consistent with the 
D.C. Circuit's holding, which the Department believes reflects the 
correct view of the law, the Department declines to adopt these 
comments. For the same reason, the Department declines to adopt the 
comment of four commenters that the exclusions to the definition of 
producer in Sec.  75.1(c)(4)(iii) eliminate the reference to primary 
and secondary producers contained in Sec.  75.1(c)(1)-(2).
    More specifically, two commenters commented that the expanded 
definition of producer to include any person who creates a computer-
generated image is contrary to the ruling in Ashcroft v. Free Speech 
Coalition, 535 U.S. 234 (2002), which permits restrictions only on 
those who produce depictions of actual persons. The commenters claimed, 
too, that the provision is contradictory in that it covers computer-
generated images while limiting its coverage to ``depiction[s] of 
actual sexually explicit conduct.'' 28 CFR 75.1(c)(1)-(2). Thus, the 
commenters argued, all statutory references to computer-generated 
images and depictions not involving possible child abuse to actual 
children in their creation should be removed. The Department notes that 
the Supreme Court in Ashcroft v. Free Speech Coalition determined that 
virtual child pornography could not be constitutionally prohibited 
under that statute, which did not require that the material be either 
obscene or the product of sexual abuse. The ruling does not, however, 
restrict the government's ability to ensure that performers in sexually 
explicit depictions are not in fact children. Nevertheless, the 
Department has made a slight change to the final rule in response to 
these comments by clarifying that the rule applies to those who 
digitally manipulate images of actual human beings but not to those who 
generate computer images that do not depict actual human beings (e.g., 
cartoons).